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Full text of "Immigration and nationality act amendments of 1976" (P.L. 94-571: a summary and explanation"

94th Congress 1 
2d Session / 



COMMITTEE PRINT 



THE "IMMIGRATION AND NATIONALITY 

ACT AMENDMENTS OF 1976" 

(P.L. 94^571) 



A SUMMAKY AND EXPLANATION 



COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 
NINETY-FOUKTH CONGKESS 

SECOND SESSION 



SS/S****^ 







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1918 £ § 



fey.* 

\%' JAN 

NOVEMBER 1976^A 



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Printed for the use of the House Committee on the Judiciary 



78-533 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1976 



COMMITTEE OX THE JUDICIARY 
PETER Wi RODINO, Jr., New Jersey, Chairman 



JACK BROOKS, Texas 
ROBERT W. KASTENMEIER, Wisconsin 
DON EDWARDS, California 
WILLIAM L. HUNGATE, Missouri 
JOHN CONYER3, Jr., Michigan 
JOSHUA EILBERO, Pennsylvania 
WALTER FLOWERS, Alabama 
JAMES R. MANN, South Carolina 
PAUL S. SARBANES, Maryland 
JOHN F. SEIBERLING, Ohio 
GEORGE E. DANIELSON, California 
ROBERT F. DRINAN, Massachusetts 
BARBARA JORDAN, Texas 
ELIZABETH HOLTZMAN, New York 
EDWARD MEZYINSKY, Iowa 
HERMAN BADILLO, New York 
ROMANO L. MAZZOLI, Kentucky 
EDWARD W. PATTISON, New York 
CHRISTOPHER J. DODD, Connecticut 
WILLIAM J. HUGHES, New Jersey 



EDWARD HUTCHINSON, Michigan 
ROBERT McCLORY, Illinois 
TOM RAILSBACK, Illinois 
CHARLES E. WIGGINS, California 
HAMILTON FISH, Jr., New York 
M. CALDWELL BUTLER, Virginia 
WILLIAM S. COHEN, Maine 
CARLOS J. MOORHEAD, California 
JOHN M. ASHBROOK, Ohio 
HENRY J. HYDE, Illinois 
THOMAS N. KINDNESS, Ohio 









ALEXANi 






~ 



* 






Earl C. Dudley, Jr., General Counsel 
Garner J. Cline, Staff Director 

Herbert Fuchs, Counsel 
William P. Shattuck, Counsel 

Alan A. Parker, Counsel 
Maurice A. Barroza, Counsel 
Arthur P. Enures, Jr., Cou 
Thomas W. Hutchison, Counsel 
Daniel L. Cohen, Counsel 
Franklin G. Polk, Counsel 
as E. Mooney, Counsel 
der B. Cook, Counsel 
Coffey, Jr., Counsel 
BBNNIT& N. Klee, Counsel 
R n iond V. Smietanka, Counsel 
J HOMAS M. Boyd, Counsel 






.Subcommittee on J^luigration, Citizen ihip, 

«..•• - JOSJiUAEILBERG, Pennsylvani 



and Intebnationai Law 



PAUL M ' land 

ELIZA WAN, New York 

CHRISTOPHER J. DODD. Connecticut 



, Pennsylvania, Chairman 
HAMILTON FISH, Ji!., New York 
WILLIAM S. COHEN, Maine 



QaJLNXRJ. ("line, Counsel 

Artip k I'. Lm-kks, Jr., Counsel 

JAMB I A. ZaBBO, A$*itlMi Counsel 

AlJBXANDXB H. Cook, Associate Counsel 

(II) 



FOREWORD 

On October 20, 1976 the President signed into law (Public Law 
94-571), a bill (H.R. 14535) which I introduced, to bring our immi- 
gration procedures for the Western Hemisphere into conformity with 
those in effect for the Eastern Hemisohere following enactment of the 
Act of October 3, 1965 (66 Stat. 163), 

In approving the 1965 amendments to the Immigration and Nation- 
ality Act, Congress repealed the offensive "national origins" s}^stem 
of immigration which placed primary emphasis on a person's place 
of birth. The 1965 law also placed a numerical ceiling of 120,000 on 
Western Hemisphere immigration but failed to establish a mechanism 
for distributing visas under that ceiling. As a result, intending immi- 
grants from the Western Hemisphere were forced to apply for visas 
on a first-come, first-served basis and no consideration was given to 
their family ties to persons already in the United States. 

To rectify this unintended situation, this new law extends, with 
minor modifications, the existing preference system, which places top 
priority on family reunification, and the 20,000 per country limitation 
(both currently in effect in the Eastern Hemisphere) to the countries 
of the Western Hemisphere. Other provisions in Public Law 94-571 
are also designed to equalize immigration policy and procedures 
between the Eastern and Western Hemisphere. I am hopeful that we 
will ultimately adopt a worldwide ceiling on immigration rather than 
the separate hemispheric ceilings of 170,000 for the Eastern Hemis- 
phere and 120,000 for the Western Hemisphere, which are carried 
forward in Public Law 94-571. 

In view of the complexity of our immigration laws, I have prepared 
this pamphlet to assist the American public in achieving a better 
understanding of these laws and of the provisions contained in Public 
Law 94-571. 

To accomplish that objective, this document contains: a copy of 
the new law; a sectional analysis; and a series of questions and answers 
regarding the effect of the law. 

The "question and answer" format is intended to provide the reader 
with a simplified explanation of the primary purpose of, and basic 
changes made by, this new law. 

It is my sincere hope that this Committee print will also serve as a 
valuable reference for persons interested in U.S. immigration laws 
and policies and for those with relatives and friends abroad who are 
seeking to immigrate to the United States. 

Joshua Eilberg, 
Chairman, Subcommittee on Immigration, 

Citizenship, and International Law] 

an) 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/ationnatioOOunit 



1. Public Law 94-571 

Public Law 94-571 

94th Congress, H.R. 14535 

October 20, 1976 

An Act to amend the Immigration and Nationality Act, and for other purposes 

Be it enacted by the Senate and House of Representatives of the United States of 
America in Congress assembled, That this Act may be cited as the "Immigration 
and Nationality Act Amendments of 1976". 

Sec. 2. Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) 
is amended — ■ 

(1) by striking out subsection (a) and inserting in lieu thereof the following: 
"Sec. 201. (a) Exclusive of special immigrants defined in section 101(a) (27), 

and immediate relatives of United States citizens as specified in subsection (b) of 
this section, (1) the number of aliens born in any foreign state or dependent area 
located in the Eastern Hemisphere who may be issued immigrant visas or who 
may otherwise acquire the status of an alien lawfully admitted to the United 
States for permanent residence, or who may, pursuant to section 203(a)(7), enter 
conditionally, shall not in any of the first three quarters of any fiscal year exceed 
a total of 45,000 and shall not in any fiscal year exceed a total of 170,000; and (2) 
the number of aliens born in any foreign state of the Western Hemisphere or in 
the Canal Zone, or in a dependent area located in the Western Hemisphere, who 
may be issued immigrant visas or who may otherwise acquire the status of an 
alien lawfully admitted to the United States for permanent residence, or who 
may, pursuant to section 203(a)(7), enter conditionally shall not in any of the 
first three quarters of any fiscal year exceed a total of 32,000 and shall not in any 
fiscal year exceed a total of 120,000."; and 

(2) by striking out subsections (c), (d), and (e). 

Sec. 3. Section 202 of the Immigration and Nationality Act (8 U.S.C. 1152) 
is amended — 

(1) by striking out the last proviso in subsection (a) ; 

(2) by striking out subsection (c) and inserting in lieu thereof the following: 
"(c) Any immigrant born in a colony or other component or dependent area 

of a foreign state overseas from the foreign state, other than a special immigrant, 
as defined in section 101 (a) (27), or an immediate relative of a United States citizen, 
as defined in section 201(b), shall be chargeable for the purpose of the limitations 
set forth in sections 201(a) and 202(a), to the hemisphere in which such colony or 
other component or dependent area is located, and to the foreign state, respectively, 
and the number of immigrant visas available to each such colony or other compo- 
nent or dependent area shall not exceed 600 in any one fiscal year."; and 

(3) by inserting at the end thereof the following new subsection: 

"(e) Whenever the maximum number of visas or conditional entries have been 
made available under section 202 to natives of any single foreign state as denned 
in subsection (b) of this section or any dependent area as defined in subsection 
(c) of this section in any fiscal year, in the next following fiscal j*ear a number of 
visas and conditional entries, not to exceed 20,000, in the case of a foreign state or 
600 in the case of a dependent area, shall be made available and allocated as 
follows: 

"(1) Visas shall first be made available, in a number not to exceed 20 per 
centum of the number specified in this subsection, to qualified immigrants 
who are the unmarried sons or daughters of citizens of the United States. 
, "(2) Visas shall next be made available, in a number not to exceed 20 per 
centum of the number specified in this subsection, plus any visas not required 
for the classes specified in paragraph (1)> to qualified immigrants who are the 
spouses, unmarried sons, or unmarried daughters of an alien lawfully ad- 
mitted for permanent residence. 

"(3) Visas shall next be made available, in a number not to exceed 10 per 
centum of the number specified in this subsection, to qualified immigrants who 
are members of the professions, or who because of their exceptional ability 
in the sciences or the arts will substantially benefit prospectively the na- 

(1) 



tional economy, cultural interests, or welfare of the United States, and whose 
services in the professions, sciences, or arts are sought by an employer in the 
United States. 

■"(4) Visas shall next be made available, in a number not to exceed 10 per 
tientum of the number specified in this subsection, plus any visas not required 
for the classes specified in paragraphs (1) through (3), to qualified immigrants 
who are the married sons or the married daughters of citizens of the United 
States. 

"(5) Visas shall next be made available, in a number not to exceed 24 per 
centum of the number specified in this subsection, plus any visas not required 
for the classes specified in paragraphs (1) through (4), to qualified immigrants 
who are the brothers or sisters of citizens of the United States, provided such 
citizens are at least twenty-one years of age. 

"(6) Visas shall next be made available, in a number not to exceed 10 per 
centum of the number specified in this subsection, to qualified immigrants 
capable of performing specified skilled or unskilled labor, not of a temporary 
or seasonal nature, for which a shortage of employable and willing persons 
exists in the United States. 

"(7) Conditional entries shall next be made available by the Attorney 
General, pursuant to such regulations as he may prescribe, in a number not 
to exceed 6 per centum of the number specified in this subsection, to aliens 
who satisfy an Immigration and Naturalization Service officer at an examina- 
tion in any non-Communist or non-Communist-dominated country, (A) 
that (i) because of persecution or fear of persecution on account of" race, 
religion, or political opinion they have fled (I) from any Communist or 
Communist-dominated country or area, or (II) from any country within the 
general area of the Middle East, and (ii) are unable or unwilling to return to 
buch country or area on account of race, religion, or political opinion, and (iii) 
are not nationals of the countries or areas in which their application for 
conditional entry is made; or (B) that they are persons uprooted by catas- 
trophic natural calamity as defined by the President who are unable to 
return to their usual place of abode. For the purpose of the foregoing the 
term 'general area of the Middle East' means the area between and including 
(1) Libya on the west, (2) Turkey on the north, (3) Pakistan on the east, and 
(4) Saudi Arabia and Ethiopia on the south: Provided, That immigrant visas 
in a number not exceeding one-half the number specified in this paragraph 
may be made available, in lieu of conditional entries of a like number, to such 
aliens who have been continuously physically present in the United States 
for a period of at least two years prior to application for adjustment of status. 

"(8) Visas so allocated but not requird for the classes specified in para- 
graphs (1) through (7) shall be made available to other qualified immigrants 
strictly in the chronological order in which they qualify.'*'. 
Sec. 4. Section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is 
amended — 

(1) by striking out "201(a) (ii)" each place it appears in paragraphs (1) 
through (7) of subsection (a) and inserting in lieu thereof in each such place 
"201(a)(1) or (2)"; 

(2) by striking out the period at the end of paragraph (3) of subsection (a) 
and inserting in lieu thereof a comma and the following: ''and whose services 
in the professions, sciences, or arts arc sought by an employer in the United 
States."; 

(3) by striking out the period at the end of paragraph (5) of subsection (a) 
and inserting in lieu thereof a comma and the following: "provided such 
citizens are at least twenty-one years of age."; and 

(4) by striking out the second sentence of subsection (e) and inserting in 
lieu thereof the following: ''The Secretary of State shall terminate the registra- 
tion of any alien who fails to apply for an immigrant visa within one year 
following notification to him of the availability of such visa, but the Secretary 
shall reinstate tie' registration of any suoh alien who establishes within two 

- following notification of the availability of such visa that such failure 
to apply was due to circumstances beyond his control. Upon such termination 
the approval of any petition approved pursuant to section 204(b) shall be 
automatically revoked.". 



Sec. 5. Section 212(a) (14) of such Act (8 U.S.C. 1182(a) (14)) is amended to 
read as follows : 

"(14) Aliens seeking to enter the United States, for the purpose of perform- 
ing skilled or unskilled labor, unless the Secretary of Labor has determined 
and certified to the Secretary of State and the Attorney General that (A) there 
are not sufficient workers who are able, willing, qualified (or equally qualified 
in the case of aliens who are members of the teaching profession or who have 
exceptional ability in the sciences or the arts), and available at the time of 
application for a visa and admission to the United States and at the place 
where the alien is to perform such skilled or unskilled labor, and (B) the 
employment of such aliens will not adversely affect the wages and working 
conditions of the workers in the United States similarly employed. The 
exclusion of aliens under this paragraph shall apply to preference immigrant 
aliens described in section 203(a) (3) and (6), and to nonpreference immigrant 
aliens described in section 203(a)(8);". 
Sec. 6. Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) 
is amended to read as follows : 

"Sec. 245. (a) The status of an alien who was inspected and admitted or paroled 
into the United States may be adjusted by the Attorney General, in his discretion 
and under such regulations as he may prescribe, to that of an alien lawfully 
admitted for permanent residence if (1) the alien makes an application for such 
adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible 
to the United States for permanent residence, and (3) an immigrant visa is 
immediately available to him at the time his application is filed. 

"(b) Upon the approval of an application for adjustment made under sub- 
section (a), the Attorney General shall record the alien's lawful admission for 
permanent residence as of the date the order of the Attorney General approving 
the application for the adjustment of status is made, and the Secretary of State 
shall reduce by one the number of the preference or nonpreference visas authorized 
to be issued under sections 202(e) or 203(a) within the class to which the alien is 
chargeable for the fiscal year then current. 

"(c) The provisions of this section shall not be applicable to (1) an alien crew- 
man; (2) an alien (other than an immediate relative as defined in section 201(b)) 
who hereafter continues in or accepts unauthorized employment prior to filing 
an application for adjustment of status; or (3) any alien admitted in transit 
without visa under section 212(d)(4)(C).". 

Sec. 7. (a) Section 101 (a) (27) of the Immigration and Nationality Act (8 U.S.C. 
1101(a) (27)) is amended by striking out subparagraph (A) and by redesignating 
subparagraphs (B) through (E) as subparagraphs (A) through (D), respectively. 

(b) Section 204 of such Act (8 U.S.C. 1154) is amended to add a new subsection 
(f), to read as follows: 

"(f) The provisions of this section shall be applicable to qualified immigrants 
specified in paragraphs (1) through (6) of section 202(e).". 

(c) Section 211(b) of such Act (8 U.S.C. 1181(b)) is amended by striking out 
"section 101(a) (27) (B)" and inserting in lieu thereof "section 101 (a) (27) (A)". 

(d) Section 212(a) (24) of such Act (8 U.S.C. 1182(a) (24)) is amended by 
striking out "101(a) (27) (A) and (B)" and inserting in lieu thereof "101(a) (27) (A) 
and aliens born in the Western Hemisphere". 

(e) Section 241(a) (10) of such Act (8 U.S.C. 1251(a) (10)) is amended by striking 
out the language in the parentheses and inserting in lieu thereof the following: 
"other than an alien described in section 101 (a) (27) (A) and aliens born in the 
Western HemisDhere" 

(f) Section 244(d) of such Act (8 U.S.C. 1254(d)) is amended by striking out 
"is entitled to special immigrant classification under section 101(a) (27) (A), or". 

(g) Section 21(e) of the Act of October 3, 1965 (Public Law 89-236; 79 Stat. 
921), is repealed. 

Sec. 8. The Act entitled "An Act to adjust the status of Cuban refugees to that 
of lawful permanent residents of the United States, and for other purposes", 
approved November 2, 1966 (8 U.S.C. 1255, note), is amended by adding at the 
end thereof the following new section : 

"Sec. 5. The approval of an application for adjustment of status to that of 
lawful permanent resident of the United States pursuant to the provisions of 
section 1 of this Act shall not require the Secretary of State to reduce the number 
of visas authorized to be issued in any class in the case of any alien who is physically 
present in the United States on or before the effective date of the Immigration and 
Nationality Act Amendments of 1976." 



Sec. 9. (a) The amendments made by this Act shall not operate to affect the 
entitlement to immigrant status or the order of consideration for issuance of an 
immigrant visa of an alien entitled to a preference status, under section 203(a) 
of the Immigration and Nationality Act, as in effect on the day before the effective 
date of this Act, on the basis of a petition filed with the Attorney General prior to 
such effective date. 

(b) An alien chargeable to the numerical limitation contained in section 21(e) of 
the Act of October 3, 1965 (79 Stat. 921), who established a priority date at a 
consular office on the basis of entitlement to immigrant status under statutory 
or regulatory provisions in existence on the day before the effective date of this 
Act shall be deemed to be entitled to immigrant status under section 203(a)(8) of 
the Immigration and Nationality Act and shall be accorded the priority date pre- 
viously established by him. Nothing in this section shall be construed to preclude 
the acquisition by such an alien of a preference status under section 203(a) of the 
Immigration and Nationality Act, as amended by section 4 of this Act. Anj T pe- 
tition filed by, or in behalf of, such an alien to accord him a preference status under 
section 203(a) shall, upon approval, be deemed to have been filed as of the priority 
date previously established by such alien. The numerical limitation to which such 
an alien shall be chargeable shall be determined as provided in sections 201 and 
202 of the Immigration and Nationality Act, as amended by this Act. 

Sec. 10. The foregoing provisions of this Act, including the amendments made 
by such provisions, shall become effective on the first day of the first month which 
begins more than sixty days after the date of enactment of this Act. 

Approved October 20, 1976. 
Legislative History: 

HOUSE REPORTS: No. 94-1553 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD, Vol. 122 (1976): 
Sept. 29, considered and passed House. 
Oct. 1, considered and passed Senate. 
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 12, 

No. 43: 

Oct. 21, Presidential statement. 



2. Section-by-Section Analysis of Public Law 94-571 

Section 1. — Popular name title. 

Section 2. — Retains present limitation on Western Hemisphere 
immigration of 120,000. 

Section 3. — Establishes a worldwide 20,000 per-country limitation 
on immigration. Increases the numerical limitation for dependent 
areas from 200 to 600, and provides that visas issued shall be charge- 
able both to the foreign state and to the Hemisphere in which the 
dependent area is located. 

Establishes a formula for distributing visas throughout the preference 
system for those countries and dependencies which reach their numeri- 
cal ceilings. 

Section If.. — Imposes the existing preference system on the Western 
Hemisphere with two exceptions: (1) a job offer is required for third 
preference visa applicants; and (2) the fifth preference (brothers and 
sisters of U.S. citizens) is limited to those cases where the U.S. citizens 
are at least 21 years of age. 

Requires the Secretary of State to terminate the registration of 
any alien who fails to apply for an immigrant visa within one year 
after notification of availability of the visa. 

Section 5. — Removes the existing exemption from the labor certifi- 
cation requirement for Western Hemisphere natives who are close 
relatives of U.S. citizens and permanent resident aliens to conform 
with application of preference system to the Western Hemisphere 
under Section 4 of the bill. 

Revises labor certification requirement as it applies to members 
of the teaching profession and to those of exceptional ability in the 
sciences and arts to require the Secretary of Labor to find that equally 
qualified Americans must be available for the job in order to deny a 
labor certification. 

Section 6. — Allows the adjustment of status of Western Hemisphere 
natives but prohibits adjustment to certain aliens who have obtained 
employment in violation of their nonimmigrant status. 

Section 7. — Technical and conforming amendments. 

Section 8. — Provides that Cuban refugees who adjust their status 
shall not be chargeable to the Western Hemisphere ceiling. 

Section 9. — Provides a savings clause for Eastern Hemisphere natives 
who have a priority date prior to the effective date of this bill. Provides 
that Western Hemisphere aliens who have an existing priority date are 
deemed eligible for nonpreference status and accords them their 
previously established priority date. In the event they are able to 
establish eligibility for a preference category, they are also accorded 
their previously established priority date. 

Section 10, — Delayed effective date. 

(5) 



3. Questions and Answers 

(1) What is the basic purpose of the "Immigration and Nationality Act 

Amendments of 1976"? 

The basic purpose of the Act of October 20, 1976 is to apply the 
same immigration provisions to all countries of the world and, more 
specifically, to eliminate the inequities in the regulation of Western 
Hemisphere immigration which inadvertently resulted from the far- 
reaching 1965 amendments to the Immigration and Nationality Act. 
An annual ceiling of 120,000 imposed on Western Hemisphere countries 
by the 1965 amendments was not combined with the preference system 
or per-country limits which regulate Eastern Hemisphere immigration 
in conjunction with a 170,000 annual ceiling. As a result, in effect, the 
United States has had two different immigration laws for the two 
hemispheres. For example, immigrant visas have been immediately 
available to natives of almost all Eastern Hemisphere countries 
applying under preference categories based on family relationship. 
However, because Western Hemisphere immigration has proceeded 
on a first-come, first served basis, unregulated by a preference system, 
Western Hemisphere natives with identical family relationships to 
those permitting immediate entry for natives of Eastern Hemisphere 
countries have had to wait their turn in line — now well over 2 years — 
for admission under the heavily oversubscribed Western Hemisphere 
ceiling. 

The basic purpose of the 1976 amendments is to rectify this unin- 
tended and grossly inequitable situation. With minor modifications 
equally applicable to both hemispheres, it extends to the Western 
Hemisphere the seven-category preference system, the 20,000 per- 
country limit and the provisions for adjustment of status currently in 
effect for Eastern Hemisphere countries. 

(2) Does the new law change the existing Eastern and Western Hemisphere 

ceilings? 
No, the ceilings are unchanged: 170,000 for the Eastern Hemisphere, 
and 120,000 for the Western Hemisphere. The preference system and 
the per-country limits will be applied to the two hemispheres under 
these separate ceilings. 

(3) Does it change the number of immigrants who may enter annually 

from each country? 
It establishes a 20,000 per-country limit on the number of immi- 
grants who may enter annually, applicable to all countries. This 
represents a change for Western Hemisphere countries, which have 
never before been subject to a per-country numerical limitation. A 
20,000 per-country limit has been in effect for all countries in the 
bem Hemisphere as a result of the 1965 amendments abolishing 
the national origins quota system. 

(6) 



(4) What effect may the per-country limit be expected to have on immigra- 

tion levels from specific Western Hemisphere countries? 

Based on fiscal year 1975 figures, it will in all probability reduce the 
number of admissions from Mexico. In fiscal year 1975, Mexico 
accounted for 62,205 immigrants, or twice as many as any other 
country in either hemisphere. Of these 20,228 were exempt from 
numerical limitations, primarily because of immediate relative status 
(spouse or child of a U.S. citizen, or parent of a U.S. citizen over 21), 
and would be unaffected by the provisions of the new law. A total of 
41,894 entered under the Western Hemisphere ceiling; under the new 
law, this latter figure would be limited to 20,000. 

The concept of a "special relationship" between this country and 
certain other countries as a basis for our immigration law has been 
rejected, by both the Executive and Legislative Branches of Govern- 
ment in favor of a uniform treatment for all countries. 

(5) Why was Western Hemisphere immigration previously unregulated 

by the preference system and per-country limits? 
The abolition of the national origins quota system was the primary 
purpose of the 1965 legislation, and this emphasis accounts in large 
part for the limited consideration given to the actual implementation 
of the Western Hemisphere ceiling during the 1965 debate. It was not 
expected that the demand would so far exceed supply under the 
the 120,000 ceiling. Thus the inequitable consequences which have 
resulted from first-come, first-served visa allocation were not antici- 
pated. Furthermore, in addition to establishing a ceiling to go into 
effect July 1, 1968, the 1965 act also established a Select Commission 
on Western Hemisphere Immigration, charged with the responsibility 
of recommending "whether, and if so how, numerical limitations should 
be imposed upon immigration to the United States from the nations 
of the Western Hemisphere." The Select Commission's recommenda- 
tion that the effective date of the ceiling be delayed for a year in order 
to allow time for further study was not acted on, and the 120,000 
ceiling went into effect on July 1, 1968. 

(6) What changes are made in the preference categories? 

Changes are made in the third and fifth preference categories only. 
The third preference category is modified to limit it to those mem- 
bers of the professions, scientists, and artists whose services are sought 
by employers in the United States. Previously, members of the profes- 
sions, scientists and artists could petition for third preference entry on 
the basis of their qualifications, without the need for a prospective em- 
ployer. The fifth preference category is modified to require that U.S. 
citizens be 21 or over in order to petition for the fifth preference entry 
of their siblings. Previously, there was no age requirement for the 
petitioning U.S. citizens. 

The modified preference system is as follows : 

First preference (unmarried sons and daughters over 21 of U.S. 
citizens) : 20 percent of the respective hemispheric limitation in 
any fiscal year; 

Second preference (spouses and unmarried sons and daughters 
of aliens lawfully admitted for permanent residence) : 20 percent 
of the limitation, plus any numbers not required for first pref- 
erence ; 



8 

Third preference (members of the professions or persons of 
exceptional ability in the sciences and arts whose services are 
sought by U.S. employers): 10 percent of the limitation; 

Fourth preference (married sons and daughters of U.S. citi- 
zens) : 10 percent of the limitation, plus any numbers not required 
by the first three preference categories; 

Fifth preference (brothers and sisters of U.S. citizens 21 or 
over) : 24 percent of the limitation, plus any numbers not required 
by the first four preference categories; 

Sixth preference (skilled and unskilled workers in short supply) : 
10 percent of the limitation; 

Seventh preference (refugees): 6 percent of the limitation; 

Xonpreference (other immigrants) : numbers not used by the 
seven preference categories. 
Labor certification is required equally of third, sixth, and non- 
preference applicants from both hemispheres. (See question 13 
regarding labor certification.) 

(7) How does the new law change the way in which the perference system 

is applied to individual countries? 

Under previous law, the percentages allotted annually to each 
preference category were applicable only on a hemisphere-wide basis, 
and not to the individual countries. That is, within the 20,000 per- 
country limit, visas were distributed to applicants from each country 
on a first-come, first-served basis according to preference priority. 
The 1976 amendments provide that, in addition to being applicable on 
a hemisphere-wide basis, visa percentage allotments for preference 
categories will also be applicable to any country or dependent area to 
which the maximum number of visas were made available in the 
preceding year. 

This provision would not increase or decrease the total number of 
visas available to those countries to which it applied ; nor is it intended 
to require the issuance of the total number of immigrant visas (20,000) 
available to such country. Its purpose is to insure a fairer distribution 
of visas under the preference system for those countries whose overall 
visa demand regularly exceeds the number available, or for those 
with a particularly high demand for visas under a specific preference 
category. 

(8) What changes are made regarding the entry of immigrants J rum the 

colonies and dependencies oj other count/ 
The annual allotment for natives of colonies or dependent areas is 
increased from 200 to 600. Visas made available to the dependencies 
will continue to be charged as subquotas to the per-country limit of 
the mother country, as in the past. However, the now law provides 
that they will henceforth be charged to the ceiling of the hemisphere 
where the dependencies are located, instead of the hemisphere of the 
mother country. 

(9) Does the new legislation address the problem of illegal a& I 

\ 68, it contains a provision aimed at deterring tourists, foreign 

students, and other nonimmignmN from working illegally. Aliens who 
have entered the country legally as Donimrnigrants and who have, 
subsequently violated the terms of their admission l>y accepting 
unauthorized employment are prohibited from changing their status 



9 

to that of permanent resident alien under the adjustment of status 
provisions of the law. The only exception allowed is for aliens who are 
immediate relatives of U.S. citizens. 

(10) Mliat other changes are made regarding adjustment of status? 
Under the adjustment of status provision, certain aliens legally in 

the United States are permitted to adjust to immigrant or permanent 
resident status without leaving the country. Under the 1965 amend- 
ments, this privilege was limited to natives of Eastern Hemisphere 
countries. The 1976 act restores adjustment of status eligibility to 
Western Hemisphere aliens as well. This provision is in keeping with 
the legislative goal of providing equal treatment to all individuals 
regardless of their place of birth. 

In addition to prohibiting adjustment of status by aliens who have 
accepted unauthorized employment (see question 9) , the amendments 
disqualify from adjustment those aliens who have been admitted in 
transit without visa. The latter provision confirms existing adminis- 
trative procedures. 

(11) Will Cuban refugees who adjust their status still be chargeable to 

the Western Hemisphere ceiling? 

Cuban refugees who are present in the United States and henceforth 
adjust their status to that of permanent residents will no longer be 
charged to the 120,000 Western Hemisphere ceiling. This amendment 
has long been recommended, primarily on the grounds that this special 
humanitarian program of the United States Government should not 
be conducted at the expense of other Western Hemisphere countries, 
as has been the case. 

[In a statement released September 16, 1976, the Attorney General 
announced that Cuban refugees in the United States who adjust their 
status will no longer be chargeable to the Western Hemisphere ceiling. 
This decision, based on an opinion of the Office of Legal Counsel in 
the Department of Justice, represents a departure from administrative 
practice since 1968. The Committee believes that legislation is appro- 
priate here.] 

(12) Will total immigration increase under the new law? 

There will be a temporary increase, reflecting the exemption from 
chargeability to the Western Hemisphere ceiling of Cuban refugees 
adjusting to immigrant status. There are approximately 60,000 
pending applications for adjustment by Cuban refugees. Apart from 
this temporary and limited increase, the new law will not increase 
immigration. 

(13) What is labor certification, and how will it be changed under the 

new law? 
The labor certification provision set forth in Section 212(a) (14) of 
the Immigration and Nationality Act is intended to protect the domes- 
tic labor force. That section provides for the excludability of certain 
categories of aliens unless the Secretary of Labor issues a certification 
indicating (1) that there are not sufficient U.S. workers who are 
"able, willing, qualified, and available" in the alien's occupational 
category and (2) that the alien's employment will not adversely affect 
the wages and working conditions of similarly situated American 



10 

workers. This legislation retains the labor certification provision with 
minor modification and extends it equally to third and sixth and 
nonpreference applicants from both hemispheres. 

The new law also includes an amendment to the provision requiring 
the Secretary of Labor to determine that "equally qualified" American 
workers are available in order to deny a labor certification for mem- 
bers of the teaching profession or for those who have exceptional 
ability in the arts and sciences. This amendment will assist colleges 
and universities which have been impeded in their efforts to acquire 
outstanding educators or faculty members as the result of an overly 
rigid interpretation of the law as it pertains to research scholars and 
exceptional members of the teaching profession. 

(14) What effect will the new law have on those currently waiting in line 
for admission under the Western Hemisphere ceiling? 
The preference system will go into effect for the Western Hemi- 
sphere immediately upon the effective date of this legislation (January 
1, 1977), in conjunction with a savings clause aimed at preserving 
the entitlement to immigrant status for all aliens who filed and were 
eligible for admission under the provisions of law previously regulating 
Western Hemisphere immigration. More specifically, all Western 
Hemisphere aliens found eligible for immigrant status prior to the 
effective date of the new law are automatical^ eligible for non- 
preference entry, and accorded their previously established priority 
dates. They are further entitled, if eligible, to preference status under 
one of the seven preference categories. Those eligible under the higher 
preferences will receive visas in advance of those entering under the 
nonpreference category, even though the latter may have earlier 
priority dates. 

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UNIVERSITY OF FLORIDA 

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